Wednesday, October 22, 2014

CSE Commissioner and CSIS stories differ on Mosley mess

A CSIS memo recently obtained by Globe and Mail reporter Colin Freeze puts a somewhat different spin on the process through which Justice Mosley of the Federal Court was informed of Five Eyes involvement in CSIS/CSEC efforts to monitor Canadians abroad—an event that, for those who may have forgotten, then led to an endproduct-storm of epic proportions and, we are now promised, legislative amendments.

The CSE Commissioner's most recent annual report highlighted these events as an intelligence review success story; I was a little skeptical of that interpretation.

Be that as it may, the Commissioner's report gives the following account of the process:

One of Commissioner Décary’s recommendations, implemented by CSEC, was that CSEC advise CSIS to provide the Court with certain additional evidence about the nature and extent of the assistance CSEC may provide to CSIS, namely respecting CSEC seeking assistance from and sharing information about the Canadian subjects of the warrants with its second party partners. (2013-14 Annual Report, p. 18)

The Commissioner's report is clear: CSEC implemented the recommendation.

In August 2013, the Minister of National Defence tabled the annual public report of the Commissioner of CSEC, which recommended that CSEC advise CSIS to provide "certain additional evidence" to the Federal Court, "about the nature and extent of the assistance CSEC may provide to CSIS." CSIS, CSEC and Justice Canada disagreed with the recommendation.

CSEC disagreed with the recommendation?

When CSEC disagrees with one of the CSE Commissioner's recommendations it does not, as a general rule, implement that recommendation. The Minister of National Defence may end up ordering CSEC to implement a recommendation, but if the minister had done that in this case, surely CSIS should have mentioned that fact in its memo to its minister. (Ministers like to know what their colleagues are up to.)

So what's the story here? Did CSEC really advise CSIS to provide the information to the Court, as the Commissioner says, even though it disagreed with that advice, as CSIS says? "We hereby advise you to take steps that we don't think you should take." It doesn't seem very likely.

Maybe the large redacted portion of the CSIS memo contains an explanation for the contradiction—it might be nothing more than bad writing on CSIS's part. If, on the other hand, the CSE Commissioner got the story wrong, well... let's just hope it was CSIS that screwed it up.

One other takeaway from all this: When the government actually cares about the amendments it has promised to put before parliament, it moves very expeditiously.